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TORT REPORT: The evolution of the ‘concerted action’ theory of liability

By Michael Aiken

Michael Aiken is an associate at McCoy Leavitt Laskey LLC, Waukesha. He can be reached at maiken@mlllaw.com.

While the “concerted action” theory of liability develops in Wisconsin, case law from a neighboring state and creative arguments can be successfully employed to defend product-liability cases. Here’s how:

Concerted action applies to individuals who, in pursuit of a common plan or design to commit a tortuous act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit.

It began as a common-law doctrine and was codified in Wis. Stat. § 895.045(2), which reads, “[I]f 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action…”

Concerted action requires three factual predicates:

(1) An explicit or tacit agreement among the parties to act in accordance with a mutually agreed upon scheme or plan;

(2) Mutual acts committed in furtherance of that common scheme or plan, that are tortuous acts;

(3) The tortuous acts undertaken to accomplish the common scheme or plan must be the acts that result in damages.

The rule of apportioning causal negligence between casually negligent tortfeasors usually isn’t applied with concerted action. Instead, the concerted actors are deemed equally responsible as a matter of law.

Some courts from other jurisdictions have explained it as “legally impossible” to apportion liability among concerted action tortfeasors, because if an apportionment were permitted, the act of one tortfeasor would no longer be the act of all, and the essence of the doctrine would be destroyed.

For this reason, the application of the doctrine is somewhat problematic when a plaintiff is a concerted actor, since it would guarantee her recovery because her liability would never exceed 50 percent.

The assertion of the concerted action theory by a product liability defendant is an issue that hasn’t been addressed by the courts, but would appear to offer one significant advantage. In a product liability special verdict, a plaintiff’s casual negligence is compared against the casual responsibility of the alleged defect in the product. If the plaintiff’s casual negligence is 51 percent or greater, the plaintiff cannot recover.

But what happens when a part of the plaintiff’s negligent use of the allegedly defective product was part of a concerted action? The plaintiff’s casual negligence in the initial comparison relating to the concerted action would be diluted as a function of the involvement of the other concerted actors.

For example, a plaintiff may claim, “I was just going along with what the others in the group started.” If the concerted action rule is applied, however, the plaintiff will be jointly and severally responsible for all individuals’ acts, and won’t reap the unfair dilution of negligence by having acted within a group.

Thus, a product liability defendant who asserts a concerted action theory will have a substantially better chance of achieving a defense verdict. Further, there’s no direct concern about a guaranteed recovery for the plaintiff, because the initial comparison is made with an entity that will never be a part of the concerted action.

One potential obstacle to the application of concerted action theory in this context is a plaintiff will likely argue that the theory must also apply in the broader comparison between the product, plaintiff and non-product defendants—and this would impermissibly guarantee a recovery for the plaintiff.

First, there’s no reason why the concerted action theory would have to carry over to the broader comparison, considering the policy of preventing an unfair dilution of casual negligence is no longer an issue.

Second, at least one court has held that a jury may still apportion fault in cases where a concerted action theory is asserted.

In Reilly v. Anderson, 727 N.W.2d 102 (Iowa 2007), the plaintiff, a back-seat passenger, was involved in a car accident where one defendant, in the front seat, was holding the wheel while the defendant driver smoked a marijuana pipe. The court acknowledged that apportioning fault among concerted actors is difficult, but dismissed the notion that it’s “legally impossible” to do so under all factual scenarios, particularly where the legislature has not stated so.

Indeed, the jury found the driver and front seat passenger to be concerted actors, finding the driver 60 percent at fault, the front passenger 20 percent at fault, and the plaintiff 20 percent at fault.

The reasoning of Reilly is consistent with Wis. Stat. §895.045(2), in that our statute doesn’t indicate it’s legally impossible to apportion liability between concerted actors.

In conclusion, a product liability defendant has a viable argument — albeit a novel one — to apply the concerted action theory where the plaintiff is a concerted actor.

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